(Mayo): I move amendment No. 5:
In page 4, line 24, after "life." to insert "However, if the court is satisfied that the person was acting under duress or threats to his or her life the Court shall have discretion to impose a lesser sentence.".
This deals with the penalties for the offence committed. A person, whatever his or her nationality, and whether within or without the State, who attempts to commit or conspires to commit the offence of torture, or does an act with the intent to obstruct or impede the arrest or prosecution of another person, including a person who is a public official, in relation to the offence of torture, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
I seek to mitigate that in certain circumstances. The Bill sets out to deal with official torture in all its forms and guises and there is a definition of torture contained in the definition section of the Bill. We are giving effect to the United Nations convention. There is a problem, however, that people who are doing their political masters' bidding could be caught in this. They might have no option, there is a gun to their heads. We should seek to mitigate that somewhat – after "shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life" in line 11, we should insert "provided such act or sanctions do not contravene the definition of torture assigned to it by this section".
On Committee Stage the Minister focused on the word "liable" and said the courts could exercise discretion. I would focus on the word "shall". There does not seem to be an option. I would have preferred "shall be guilty of an offence and may be liable on conviction on indictment to imprisonment for life". What we consider a discretionary choice for the courts might be more explicit than we realise. The terminology is binding in what it conveys to the courts by way of the sentence option.